PRESS RELEASE CONCERNING THE DECISION DISMISSING THE REQUEST FOR ANNULMENT OF CERTAIN PROVISIONS OF THE TURKISH MAARIF FOUNDATION LAW

The Constitutional Court dismissed, at its meeting dated 6 December 2018, the requests for annulment of certain provisions of the Turkish Maarif Foundation Law no. 6721 dated 17 June 2016, in the file no. E.2016/159, as the contested provisions were not in breach of the Constitution. The grounds for the requests for annulment of the said provisions are summarized below.

A. Phrase “… and facilities such as dormitories…” included in Article 1 § 1 of the Law

Contested Provision

It is set out in the contested provision that the objective of the Turkish Maarif Foundation (“the Foundation”) is to provide scholarships at all educational stages from the pre-school education to the university education and to open facilities such as schools, educational institutions and dormitories in order to provide and develop formal and informal education services abroad based on the common knowledge and values of humanity.

Grounds for the Request for Annulment

It was maintained in brief that all training and education centres were attached to the Ministry of National Education by the Law on Unification of Education. In accordance with the contested provision, certain powers of the Ministry was transferred to the Foundation, which was in breach of Articles 2, 10 and 174 of the Constitution.

The Court’s Assessment

It is stipulated in Article 1 of the Law that the objective of the Foundation is to provide and develop formal and informal education services abroad based on the common knowledge and values of humanity. Accordingly, the Foundation’s authority to open facilities are limited to the purposes specified in this Article.

In addition, as the Foundation has been established in order to provide formal and informal education services abroad, the facilities it will open to carry out these services may vary according to the legislation of the country they will operate in. Therefore, it is not possible to predetermine and give a list of these facilities. Considering this situation, the legislator has specified these facilities in general terms by giving examples such as schools, educational institutions and dormitories, and has provided the Foundation with the authority to open such and similar institutions. Thus, the contested provision does not provide the Foundation with an indefinite authority to open facilities.

Subjecting the Foundation to the rules different from those applicable to the other foundations in order to enable it to achieve its founding objective does not contravene the principle of equality.

Consequently, the Court concluded that the contested provision was not in breach of the Constitution, and therefore dismissed the request for annulment.

B. Phrase “… in order to train educators, lecturers, consultants and academicians for educational institutions…” included in Article 2 § 1 (e) of the Law

Contested Provision

The contested provision stipulates that the Foundation can train educators, lecturers, consultants and academicians for the educational institutions it will open abroad, through training programmes -including those inside the country- conducted by itself.

Grounds for the Request for Annulment

It was maintained in brief that it was the universities’ duty to train educators, lecturers, consultants and academicians for the educational institutions. However, with the contested provision, the Foundation was directly granted an authority to train these personnel, as well as there were uncertainties in the provision. It was claimed that these situations constituted a violation of Article 2 of the Constitution.

The Court’s Assessment

As a requirement of the principle of universality of the legislation, the legislator may regulate an issue not prescribed in the Constitution, making it foreseeable and enforceable, provided that it does not contradict with the basic principles and prohibitive provisions of the Constitution.

In this sense, the legislator is vested with the authority to determine the issues as regards the training of the educators who will take office in the educational institutions abroad, as well as their working conditions and titles.

The legislator is also entitled to grant authority to the Foundation to create positions for consultants in the educational institutions to be opened abroad by the Foundation and to organize training programmes for them.

It is clear that the educational institutions to be opened by the Foundation inside the country to train the personnel who will take office at the primary, secondary and higher educational institutions, as well as the informal education courses to be opened abroad by the Foundation shall be subject to both the national educational legislation and the legislative provisions on higher educational institutions. In this respect, it cannot be said that the Foundation has been granted an indefinite authority to train the personnel who will take office in educational institutions.

Consequently, the Court concluded that the contested provision was not in breach of the Constitution, and therefore dismissed the request for annulment.

C. Phrase “… also in cooperation with the legal and real persons…” included in the first sentence of Article 2 § 2 of the Law and phrase “… or by taking over companies…” included in the third sentence thereof

Contested Provisions

The contested provisions stipulate that the Foundation may carry out the activities specified in the Law in cooperation with the legal or real persons, or if necessary, through the companies by taking over them.

Grounds for the Requests for Annulment

It was maintained in brief that the contested provisions granted the Foundation the authority to get into partnership with the real or legal persons or to take over companies, without specifying any criteria, which was against the public interest. The said provisions also enabled the directors of the Foundation to allow the real and legal persons to use the public resources, in accordance with their own personal interests. Therefore, it was claimed that the contested provisions were in breach of Article 2 of the Constitution.

The Court’s Assessment

There is no legal obstacle for the foundations to establish a company or to get into partnership with a company.

As the Foundation has been established for the purpose of providing and developing formal and informal education services abroad, it must operate in accordance with the legislation of the countries concerned. The legislation of the countries where it will operate may vary. While some countries may allow the Foundation to operate directly, the others may necessitate that the Foundation shall operate in cooperation with a local educational institution or a local company. It has been understood that the contested provisions allow the Foundation, where necessary, to operate in cooperation with the real and legal persons or by taking over companies to achieve its objectives. In this respect, the contested provisions are not against the public interest.

The objectives of the Foundation and the activities it will carry out to achieve these objectives are clearly specified in the Law. Hereby, except for these objectives and activities, the Foundation is not allowed to operate by getting into partnership or taking over companies. Therefore, the contested provisions did not grant an indefinite authority to the Foundation in terms of getting into partnership or taking over companies.

Whether the Foundation has operated in accordance with its founding objectives shall be subject to the supervision of both the General Directorate of Foundations and the Supervisory Board. Accordingly, the contested provisions do not enable the directors of the Foundation to allow the real and legal persons to use the public resources, in accordance with their own personal interests.

Consequently, the Court concluded that the contested provisions were not in breach of the Constitution, and therefore dismissed the requests for annulment.

D. Provisional Article 1 § 2 of the Law

Contested Provision

The contested provision stipulates that one million Turkish liras shall be allocated to the Foundation from the budget of the Ministry of National Education in order to be used during the establishment process and that after the process shall be completed, the remaining amount shall be transferred to the Foundation.

Grounds for the Request for Annulment

It was maintained in brief that the contested provision stipulated no criteria for determining the amount of the fund to be allocated to the Foundation from the budget of the Ministry of National Education and that the legislator exercised an arbitrary discretion in terms of the transfer of the fund, which was in breach of Articles 2 and 10 of the Constitution.

The Court’s Assessment

The legislator enjoys discretion in making arrangements in terms of providing financial support to associations, foundations, unions, institutions, organizations and funds, for the purposes of public interest, from the budgets of the administrations covered by the central administration budget, provided that the Constitution and the general legal principles are not infringed.

The Foundation has been established in order to provide and develop formal and informal education services abroad based on the common knowledge and values of humanity, to provide scholarships at all educational stages, to open facilities such as schools, educational institutions and dormitories, to train educators and carry out scientific research, as well as to issue publications. It has been understood that one million Turkish liras was transferred from the budget of the Ministry of National Education to the Foundation to enable it to complete the establishment process and start to operate as soon as possible to achieve its objectives. From this aspect, the contested provision is not against the public interest. The question as to whether the amount of the public fund to be transferred to the Foundation was reasonable and proportionate can be subject to substantive review, but not the constitutionality review.

In addition, whether the fund to be transferred to the Foundation from the budget of the Ministry of National Defence has been used properly shall be subject to the supervision of the General Directorate of Foundations and the Supervisory Board within the Foundation. Accordingly, whether the public fund transferred to the Foundation has been used properly has not lacked supervision.

Consequently, the Court concluded that the contested provision was not in breach of the Constitution, and therefore dismissed the request for annulment.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.